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10-11-2000 CITY OF EDGEWATER Planning and Zoning Board Regular Meeting Wednesday, October 11, 2000 6:30 p.m. Chairman Garthwaite called to order the regular meeting of the Planning and Zoning Board at 6:30 p.m., October 11, 2000 in the Community Center, 102 N. Riverside Drive, Edgewater, Florida. ROLL CALL Members present were Mr. Masso, Mrs. Zeese, Mr. Mullen, Mr. Vopelak, Chairman Garthwaite and Mr. Youkon. Also present were Lynne Plaskett, Planning Director; Bonnie Wenzel, Planning Secretary; and Patricia Hayes, Board Coordinator. APPROVAL OF MINUTES Mr. Masso made a motion to approve the minutes of September 13, 2000 as read. Mr. Vopelak seconded. Motion PASSED 6 -0. OLD BUSINESS None at this time. NEW BUSINESS Public Hearings AN -0014- Gilbert and Teresa Tweed, owners, requesting annexation of approximately two (2) acres of property known as Lots 11 & 13, Massey Ranch Airpark, Unit 1. Chairman Garthwaite read the staff comments and opened the public hearing. As there were no questions or comments Chairman Garthwaite closed the public hearing. Mr. Masso made a motion that the Board forwards a favorable recommendation of AN -0011 to the City Council. Mr. Mullen seconded the motion. Motion PASSED 6 -0. RZ -0002 — John S. Massey, authorized agent, requesting rezoning of approximately 7.17 acres of property to 1 -1, Light Industrial. Chairman Garthwaite read the staff comments and opened the public hearing. As there were no questions or comments Chairman Garthwaite closed the public hearing. Mr. Masso made a motion that the Board forward a favorable recommendation of RZ -0002 to the City Council. Mr. Mullen seconded the motion. Motion PASSED 6 -0. VA -0001 — James S. Morris, authorized agent, requesting a variance from the shoreline and wetlands and impervious surface requirements for approximately .82 acres of property located East of Riverside Drive and North of Lamont Street. Chairman Garthwaite read the staff comments and reports then opened the public hearing. Chairman Garthwaite asked Mrs. Plaskett if what they wanted to do was build on the point of the land. Mrs. Plaskett stated that was correct. Chairman Garthwaite commented that it appears they want to build on the point rather than fill the wetlands. Mrs. Plaskett noted that the initial request was for two (2) single family homes on two (2) Tots (parcels C & D), but the request has -1- since been revised to include one (1) single family home on Parcel D. Chairman Garthwaite asked if this is a seawall shown on the drawing and Mrs. Plaskett said yes. Mrs. Plaskett noted that seawalls are not a permitted unless damage is causing a threat to the property. Mrs. Plaskett met with Mr. Joe Young, who provided the planting report, and delineated the wetland and surface water areas. Mrs. Plaskett met with FDEP, who looked at the property and discussed some of the wetlands issues. Mrs. Plaskett asked if they would be required to get a State permit to build. FDEP said as long as they did not encroach into the wetlands they would not require a permit. Mr. Volpelak asked Mrs. Plaskett if she asked them about the wetlands. Mrs. Plaskett said yes, they went out and looked at the wetlands, the area outside of the seawall that is proposed. FDEP gave the Armitages the rules on the Mangroves. DEP said they would not need a permit from them to build a house on the uplands portion on this property because it is in fact already disturbed. They said the low area is considered wetlands. One thing that was discussed early on was the possibility of an alternate plan. Mrs. Plaskett met with the building official and thought maybe a fill permit could be applied to the State for the land in closer proximity to N. Riverside Drive. Maybe the initial two (2) houses could be built closer to Riverside as opposed to the peninsula area. Mrs. Plaskett said she had no information that they applied for a fill permit. Mr.Vopelak noted one (1) site plan shows plantings according to BCS, and still shows a seawall, but seawalls area not allowed. Mrs. Plaskett said that is correct. Mr. Masso asked if the possibility of filling the wetlands was discussed. Mrs. Plaskett stated that she and staff met with Attorney Jim Morris and the owners about going to DEP to get permits for that. She does not yet know the status, as she has not spoken to Mr. Morris since that time. Mrs. Plaskett further noted that Mr. Young presented the site plans to the Planning Department for the property showing the planting area detail. Mrs. Plaskett met with Mr. Young and explained to him that seawalls are not a permitted use and suggested the plans be revised to reduce the size of the home, to a lesser variance request, but has not received any revised plans. Mr. Youkon asked if the variance is not granted what could be done with the land. Mrs. Plaskett said nothing, except the existing dock. Part of the problem is that, as the report shows, the former Planning Director allowed the previous owners to subdivide the property and they assumed that since they were allowed to subdivide it was a buildable lot and subsequently sold it to the Armitages, who bought it assumingly in good faith. They came to the City to see what they could build. They talked with Dennis Fischer and myself. We discussed several different options; one was a stilt built home and another was building a stem wall around the footprint of the building. They also talked about getting fill permits from the State. The previous owners did have a permit back in 1995, Mrs. Plaskett believes, to fill in a majority of this portion of the property, but for reasons we are not aware of, did not. Our suggestion was to go back to the DEP and get a fill permit. When Mrs. Plaskett spoke with DEP they said they would not issue permits to fill in that portion of the property. Mr. Vopelak asked if they would not issue a permit even with mitigation. Mrs. Plaskett said the original permit they had would not be issued today. They may not even issue fill permits as we thought they might for the area close to Riverside Drive. We will not know until such time as they apply. Mr. Vopelak noted that the other thing they have to consider is covering twenty percent (20 %) more of the property with impervious material, therefore decreasing the capability of percolation. And the possibility of protection of wetlands and increase the potential for salt -water intrusion. Mrs. Plaskett said the City engineer would go out, but they would be required to hire their own stormwater engineer. They would also be required to come up with a plan to assure that -2- stormwater runoff from the impervious surface would not directly runoff into the Indian River, which is what is required. Their engineer would provide those drawings to satisfy the stormwater management requirements. Mr. Vopelak thought it appears that with the alternative we could eliminate the seawall and enhance the wetlands; maybe out to the Eastern portion of the property. Mitigate and fill at Riverside Drive and have a much better project. Mr. James S. Morris, Esquire, addressed the Board and handed out drawings and photos for them to refer to. Mr. Morris agrees with the Board regarding the destruction of wetlands and feels what he has given the Board (in the sense of drawings) is; the first drawing is the plan the Armitages have with alterations to the wetlands, the second drawing is the old Haughwout fill permit that did provide to fill the wetlands, and the third is an illustration of the fifty foot (50') setback applied to this property. He noted a point made by Mrs. Plaskett: what could be done if the variance is denied, and she answered correctly: nothing. The drawing with the setbacks illustrates that point. The setback lines actually cross. The next important point to keep in mind is that this is a buildable lot according to the City of Edgewater regulations, except requiring the 50' setback. He also noted the seawall can be omitted. The plan by Mr. Young is a preservation of all of the existing wetlands on the property and providing additional upland transitional vegetation so the wetlands systems on the property are maintained. Looking at the second drawing in the packet that's actually the old Haughwout dredge & fill permit drawing. You can see the wetland pockets on both sides of the peninsula are filled. Mr. Morris stated that he has given the Board photos of those wetland pockets to show that they are healthy wetlands. On one side, there is sort of a sandy looking area where fiddler crabs live and travel to the water. The Armitages made the proposal to the City because they believe the proposal for the Haughwouts was considerably more destructive from an environmental standpoint than the plan they proposed to use. Their plan uses only existing filled area of the property. The site plan shows that none of the wetlands are impacted at all, with the exception of the seawall, and they can exclude that from the proposal. At the time it was drawn, Mr. Young did not realize that seawalls were not permitted. Mr. Morris continued saying, the last set of photos shows property next door to the Armitages (South side) where a vertical seawall has been put up right on the wetlands vegetation line and he is having a hard time understanding the difference in the treatment, but the fact that it exists is an important point for the Board. Mr. Morris further stated that when a variance is requested, the Board needs to determine if they don't grant the variance, the person denied the variance will somehow be denied the right commonly enjoyed by other similarly situated properties. The property pictured with the fill is next door to the Amitages. They do not propose to do anything like the photos, but they likewise have a hard time understanding how that can occur next door to them, but will not be permitted to build on the recorded lot, which is something that will not have any wetland impact at all. Mr. Morris continued, in regard to the alternative proposal we don't think it's the best alternative. It's an alternative that can be pursued by uniting lots and agreeing that we should fill wetlands and this is a situation where regulation, though well intended, actually reaches the effect that you don't desire, which is towards destroying wetlands and preventing them from preserving what is there. The Armitages have gone to the neighbors in the vicinity and received signatures (which Mr. Morris handed to the board) saying they do not object and in fact support the request. Mr. Morris - 3 - commented on the suggestion of building a smaller home. He said the Armitages are not opposed to that, but any home built on this lot will be in violation of the setbacks without having some variance. The exhibits given show that there are uplands property, the wetlands are active and healthy, and the alternative provided by Mrs. Plaskett and staff, which was previously approved in 1984 by DEP is not a good alternate for the City, the property, or the Armitages. They desire to preserve the habitat around them, that's why they love this property and truly, if you don't grant the variance, you are denying them reasonable use of the lot that the City previously sanctioned for construction. Mr. Morris asked Mr. Young to speak of the probability or likelihood of permitting the other plan, which would be filling the wetland pockets on the property. Mr. Joe Young, of Biological Consultant Services, New Smyrna Beach, stated the plan they put together was to provide some upland buffer features to this lot that do not exist at this time. It is a well- maintained grass area of uplands. Mr. Young said the idea is, if a house is put there it would make up for that type of reduction in function, by actually creating some upland areas. The design is to basically put something there that does not currently exist. Mr. Young has been in contact with DEP and said that they would not support a proposal that requires building wetlands in exchange for placing a house there. Mr. Young asked if any members of the Board had any questions for him. Mr. Masso asked Mr. Young if he has discussed the potential of mitigation. Mr. Young stated that he asked DEP if they would have a problem permitting an impact to those kinds of wetlands, it does not matter if you have mitigation or not. Mr. Masso stated that we have already done that within the City. Mr. Young mentioned that is correct, but the first step in the process is to look at alternatives and show that you do not have any. This is before you even look at the mitigation aspect. Mr. Morris stated that the property physically is capable of supporting the home, but when you apply the artificial lines (the setbacks), then the property becomes incapable of supporting a home. Mr. Youkon asked if DEP would take that into account. Mr. Morris said they may take it into account if the variance is denied, but would like to refer to the City engineering report. The report states the purpose of this rule is to protect wetlands, essentially for the health of the critters. A denial of the variance means that property of this size should be preserved and the wetlands that are illustrated on sheet one (1) of the photos and pockets on sheet three (3) should be filled. Mr. Morris showed the wetland areas that would have be filled if the variance was denied. Getting a permit from DEP would be the only alternative left. Mr. Morris then explained the hierarchy employed by DEP in determining whether or not to issue a permit: the first question they will ask is can the wetland impact be avoided? With a variance the wetland impact can be avoided, as well as offering to provide plantings that would add to the function of the wetlands. With denial of the variance the answer from DEP would be not to issue the permit. This is because we won't be able to fill the upland peninsula and build, we would have to come back into the wetland area on the perimeter of the roadway in order to have something that is usable and buildable. The next question would be: What is the minimum amount of fill necessary? What is the proper amount of mitigation? When you consider mitigation, there is off -site and on -site mitigation, it is a given in any environmental circle that on- site mitigation is what is preferred, but there is no place on the property to provide any on -site mitigation. Water and wetlands are in existence. There is nothing you can do to create more wetlands in the vicinity of this property. Either the home is built back towards Riverside Drive and wetlands are filled to accommodate it or the home is placed on existing filled land that is -4- upland in character and the wetland impact is avoided completely. As a condition of the variance additional transitional vegetation is planted as outlined in the plan. The only desire of the Armitages is to build a home that is environmentally friendly and minimizes the impact on the environment, which is why the seawall request can be dropped. The property has been stable from a virtual sidewall standpoint where the Mangroves grow. Mr. Morris noted that the wetlands and Mangroves are healthy and no purpose would be served in filling them. It would be precisely contradictory to the purposed outline in the City engineer's report. Mr. Morris stated that there is a legitimate hardship here, as the property has no use without a variance. Denying the variance would deprive the owners the use commonly enjoyed by another similar situated property and would be contradictory to the stated purposes in the ordinance. Mr. Youkon asked Mr. Morris if the fifty -foot (50)' setback was public record at the time the property was purchased. Mr. Morris said that it was. Mr. Youkon further stated that when they purchased the property they were on notice that they would need a variance to build a house on that property. Mr. Morris said yes. Mr. Youkon then said the claim of hardship is weaker. Mr. Morris said certainly not, because hardship runs with the land, it does not attach to the person. It is particularly attached to the physical characteristics of the property; the nature of the hardship is the same for each person who owns it. Mr. Morris believes the Haughwouts had a greater hardship than the Armitages. The Haughwouts, received permission to subdivide the property, and the City sanctioned the subdivision and created the Tots. So under the City's theory the Haughwouts would have a greater hardship than the Armitages. The fact that the property was divided by the Haughwouts and subsequently bought by the Armitages makes them an innocent third party purchaser. When the property was platted by the City it could then be sold individually. That does not change the nature of the hardship either, the hardship attaches to each one of the lots. Mr. Morris then asked if that answered the questions of the Board. Mr. Youkon said he understood what Mr. Morris was saying, but did not necessarily agree with him. Mr. Youkon said that the City allowed the property to be subdivided, but the assumption was that it would be a building lot, not that, in fact, it was a buildable lot. Mrs. Plaskett stated the former Planning Director did allow them to subdivide the property. Ms. Haughwout came to the Planning Department because she had a buyer on the property. She was under the assumption from the former Planning Director that if they subdivided and recorded it the property was a buildable lot. Mr. Morris noted that is what you would think when you find subdivided property. Mr. Morris said when the City approves a plat the City has to find, by law, that the lots conform to the requirements of the City as defined by Zoning and the Land Development Code Regulations. Mr. Morris said there is room in the code to grant a variance for the minimum necessary to have use of the property and that is what they are asking the Board to do. Mr. Youkon stated that they are asking for a 90% variance. Mr. Morris said the reason for that is, is to take as little as possible and still have reasonable use of the property. Mr. Vopelak asked for a proposal that shows the ponding, the development without the seawall, and gives elevation of the property before and after stormwater impact. Mr. Morris said that he could do that and would like to continue the case. Mr. Vopelak made a motion to continue this case until the next meeting with the approved conditions. Mr. Masso seconded. Motion PASSED 6 -0. -5- VA -0003- Williams K. Riggle, owner, requesting a variance from the front yard setback requirements for approximately .23 acres of property located on the Southeast corner of Fern Palm Drive and Indian River Blvd. Chairman Garthwaite noted that the side corner setback variance is no longer needed per the new Land Development Code. Mrs. Plaskett handed Mr. Riggle the memo regarding this and read it into the record. Chairman Garthwaite asked if this property was considered in -fill development with a sixty -foot (60') setback under the old code. Mrs. Plaskett explained Mr. Riggle's lots were platted before 1974, the duplexes, triplexes, and quadraplexes, were allowed to be built there under the old code, which required only seven hundred fifty square feet (750') of living area. Mrs. Plaskett further stated that the new Land Development Code now requires 1,000 sq. ft. minimum living area for each unit. And does not take into consideration in -fill development, which the State requires us to do. Mrs. Plaskett further apologized for not including that, as it was thought to be in there. Mr. Riggle wishes to build two (2) units, 799 square feet each. Mrs. Plaskett stated that the old setback on Indian River Blvd of sixty -feet (60') is in no other part of the City. Someone had the foresight to see that one day State Road 442 would be widened and it had a sixty -foot (60') setback on either side so when they came through and widened it, they would not be taking any houses. FPL changed that, and put poles on the North side of State Road 442 and DOT had to change their plans, they took Mr. Riggle's entire block of six (6) units. Mr. Riggle is trying to relocate the tenants in those units. The new setback now is the same as everywhere else in Florida Shores. Under the new land development code the front setback would be forty feet (40') from the side corner, and he could meet the twenty -five foot (25') rear and the new Indian River Blvd. setback, which is twenty -five feet (25') on the side corner. Mr. Youkon noted that there was talk about changing the zoning along Indian River Boulevard to allow professional offices. Mrs. Plaskett said this has already been done. Mr. Youkon asked if having a duplex on Indian River Boulevard would then take away from all this. Mrs. Plaskett stated that Mr. Riggle has four (4) lots and there are duplex's on two (2) and he wants to add on to that and make a fourplex. Mr. Youkon asked if there was a possibility of putting some other house there rather than a duplex. Mrs. Plaskett said he could probably build a single - family home, but everything in the area is duplexes. It is zoned R -4, multi - family residential. Mr. Youkon noted that the goal is to permit offices on Indian River Blvd and that if history is any lesson, that will dominate. You will find that the commercial value of the property will be higher than the residential value, then in the middle of that there would be a duplex and does not think that would be good. Mrs. Plaskett explained that the residential office would not be a zoning classification, you would have to have an existing single family home and you would be allowed to convert that single family home into a residential professional office; landscaping, parking and all other business requirements would have to be met. If Mr. Riggle chose to build a single family home with the understanding that one day it could be turned into an office he could probably do that, but the duplex, tri -plex, and quadplex are also permitted. Mr. William K. Riggle, owner, addressed the Board stating he felt the best use of the property is a duplex. He stated that the buffer with commercial / residential single - family homes within in commercial zoning is not a good idea. He has six (6) longtime residents that are being displaced and they really want to stay in the area. He also noted that the properties are well maintained. Mr. Youkon stated for the record that he is a resident within the five hundred foot (500') radius of the property. Mr. Masso asked if the duplex would be two (2) seven hundred fifty (750) square foot units. Mrs. Plaskett stated that the units would be a little over seven -6- hundred fifty (750) square feet and Mr. Riggle stated the units would be eight hundred (800) square feet. Chairman Garthwaite asked if this was advertised as a variance for the front setback, and Mrs. Plaskett said yes. Chairman Garthwaite questioned if we were going to change that to the size of the building, and if yes does it have to be re- advertised. Ms. Hayes said that it actually was advertised as a variance request, it was not specified and we did not get any phone calls regarding this for additional information. Chairman Garthwaite then asked about the posted sign on the property, Mrs. Plaskett stated that the ad in the paper was the same as on the sign. Mr. Youkon asked Mr. Riggle if it would ruin his plans if we continued this for a month, Mr. Riggle stated that it would, because he is being pushed by the DOT right now. Mrs. Plaskett commented that the DOT is trying to take a portion of the property. Mr. Youkon said the DOT is going to take it anyway. Mrs. Plaskett stated that the City has put the DOT on notice that they must apply for variances on all of the property they are taking and they are not happy about that, we are trying to negotiate with them. Mr. Riggle has been negotiating with DOT on his own and part of the situation is, if he gets the variance granted he can negotiate a settlement. Mr. Riggle stated that DOT will take the units and condemn them and he just wants to give his tenants a place to live. Chairman Garthwaite asked what kind of problems would we get into with the advertisement. Mrs. Plaskett said the advertisement was not specific as to what type of variance was requested. Mr. Youkon noted that the letter sent to adjacent property owners stated the type and size of setback. Mrs. Plaskett thought that was correct. Mr. Youkon was concerned that if we gave out the wrong information would we be in trouble. Ms. Hayes said the letter for the public notice stated an eight -foot (8') setback. Mrs. Plaskett noted that the letters would have to be re -sent. Chairman Garthwaite asked for a motion to table this until the next meeting, Mr. Masso made the motion and Mr. Youkon seconded. Motion PASSED 6 -0. DISCUSSION Mr. Vopelak asked if they were allowed, under the Sunshine Law, to discuss the items that were before them now. Mrs. Plaskett said yes, they are in an open meeting; it can be discussed as a Board. Mr. Youkon stated that individually they could not discuss the items after the meeting. Much discussion ensued concerning the Armitage property. DISCUSSION ITEMS 1. Planning Director' Report None at this time. 2. Chairman's Report None at this time. -7- ADJOURNMENT There being no further business to come before the Board, the meet adjourned at 8:00 p.m. Mrs. Plaskett welcomed Mrs. Zeese to the Board. Minutes respectfully submitted by: Bonnie A. Wenzel, Board Secretary Planning and Zoning Board. :baw -8-